Let’s be honest. Video testimony is notoriously boring. But because it’s so commonplace in trial, and can be a source of crucial evidence, you don’t have the luxury of allowing your jury to nod off. Moreover, you can’t ask a videotape to repeat itself, clarify an answer – or to please stop mumbling; you only get one shot for the testimony to come through loud and clear.
The good news is that jurors, like most of our society, are accustomed to viewing video on their TVs, smartphones, computers and tablets. The not-so-good news is that, with so many ways to view video, their attention spans are being taxed more than ever. So, it’s essential that you not let your video testimony be an afterthought. If it’s important enough to play in the courtroom, it’s important enough to ensure it’s understood and remembered. Below, we share valuable tips from our team of trial technology consultants, who have many years of experience watching this video testimony along with jurors in the courtroom.
Starting Principles to Ensure Juror Attention to Trial Video Designations
- Prime Them, Remind Them. In opening statements announce to the jury that they will see video testimony in the case, and be sure to tell them what they need to listen for. Then, in subsequent graphics and in closing, reiterate the crucial pieces of information they heard in the video testimony. You’d treat any important piece of evidence this way, of course, but video is occasionally overlooked and warrants a special reminder.
- Visibility, Audibility. The jurors’ line of sight to the screen and the volume of the audio are most important. Imagine the last time you sat in a movie theater. All seats are pointing at one large screen and there are ample speakers so you won’t miss anything that is being said. You may not be able to hook up surround-sound in court, but you can at least have a quick seat in every chair in the jury box to confirm that each juror will be able to see and hear the video witness clearly.
- If the video recording or the witness’s accent makes it difficult to understand him or her, make sure you include captions in the video so jurors don’t have to struggle.
- Focus. Nothing should distract the jurors or impair their ability to remain engaged, listen to all of the testimony and, above all, take notes.
Presentation Options for Maximizing Juror Engagement with Video Testimony at Trial
How Many Screens?
The number of screens you use to present the testimony will depend on the extent to which you need the jury to see both the witness and any pertinent exhibits simultaneously.
- One Screen. If there are no exhibits, or the exhibits are adequately explained by the testimony and do not need to be seen to be understood, a single screen that shows only the witness may be sufficient.
- Split Screen. If, on the other hand, there are a number of exhibits, or it is important that at least some of the exhibits be viewed by the jury along with the testimony then use split screen video at trial.
- Two Screens. If you did not use a document camera during the deposition, you can still use a document camera or second laptop and a second monitor in the courtroom to display the exhibits at the same time you play the video testimony.
- This approach could allow you more flexibility to use call-outs or highlights to draw the jury’s attention to the relevant portions of the documents as the video is being played.
- Keep in mind, however, that if you use multiple monitors with the jury, there may be some distraction or loss of content as they are forced to look back and forth between the screens.
- Make sure your hot seat operator is well-versed at calling up your documents and trial graphics on cue while the video is playing. Not all operators are comfortable in this scenario.
Exhibit Binders for Jurors?
In our 22+ years of courtroom work we have found the best approach to playing video depositions with exhibits is to display them electronically, eliminating all potential distractions for the jury to solely focus on the witness testifying on the screen in front of them. However, some have opted to provide the jurors with copies of the exhibits to refer to during the video replay as an alternative to putting the exhibits on camera. There are advantages and disadvantages to this approach.
- Possible Advantages:
- Would the need to actively hold, touch and flip the pages on the binders keep the jury more engaged than if all they have to do is passively watch the screen?
- Would it provide useful insight about the jurors to see who is following along with the exhibits?
- Is there “fine print” or other detail on the exhibits that would be easier for the jurors to see if they have their own copy?
- Possible Disadvantages:
- Will the jurors start thumbing through the binders on their own, or get “stuck” on a particular exhibit after the witness has moved on, and thus have their attention diverted from the testimony?
- Are jurors more likely to get confused about which exhibit is under discussion at any particular time if they have to find it for themselves?
- Will juggling big binders make it harder for jurors to take notes?
Final Tips to Help You Keep the Jury’s Attention During Trial Video Depositions
- Get help from the bench. Remind the judge to ask if any of the jurors are having trouble seeing or hearing the video and exhibits.
- Request that the court call more breaks when playing videos. A good rule of thumb for long videos is no more than 45 minutes to 1 hour without a stretch break.
- Ask the court to encourage the jurors to stand up and stretch during the break. Consider even asking the court to suggest they can stand up while watching the video, as long as it won’t disturb or obstruct the view of the other jurors.
- Announce to the court and jury the video runtime. By giving everyone this sense of time the jurors will have a mental goalpost and won’t fear an endlessly droning video (or tune out early).
- Avoid playing designations piecemeal or out of order. Try to agree with the other side – or ask the court to insist – that the party who calls the witness by video is responsible for playing both sides’ designations for that witness.
- Try not to play a longer witness directly after lunch. Simply put, it’s hard for anyone to pay attention to long video testimony while battling a food coma or during those mid-afternoon doldrums.
- Keep the lights on. When the lights go down, so do eyelids. You shouldn’t need to dim the lights if you’re working with the brightest projector possible.
- Don’t sacrifice important video testimony to the other side’s trial technician. If their technician is having trouble playing video that includes your designations, offer to have your trial technician play them.
Because video testimony is prerecorded, take advantage of your ability to optimize the jury’s engagement. Use the above tips to help ensure that it is perfectly heard, seen, understood, remembered and cognitively linked to the rest of your case. For your next trial, let us help you edit a video deposition.
By: Adam Bloomberg, Director – Visual Communications